We’ll do you a favor and put you out of your misery right from the start. No, legitimate Banksy prints are not and were not being sold by the giant retailer. But for a moment, this was not so clear. It wasn’t that long ago that the British artist used NYC as his canvas for his one-month project titled, "Better Out Than In." And, in true Banksy fashion, he did it all without definitively being spotted, leaving behind the sense of mystery that has become synonymous with his work. When the dust settled on the Walmart issue (i.e. Banksy’s publicist set the record straight), it was clear that the retailer was just looking to capitalize on Banksy’s fame by duping consumers. You see, what Walmart did was more than just transfer the artist’s works to a piece of canvas and offer them for sale; the retail giant also listed the items as Banksy’s work. And as if that’s not bad enough, some of the works were listed for over $800.
Jo Brooks, Banksy’s publicist, quickly stepped in and told LAist that "the Banksy canvases you showed me are counterfeit reproductions, and we are currently dealing with Walmart about them." Walmart then issued a statement explaining that the canvas prints were being sold through third-party sellers, Wayfair and Plumstruck, and have been disabled from its website. Wayfair followed suit and removed the prints from its site.
A lot of questions come to mind in this scenario. The one to begin with is whether or not Banksy’s works are protected under copyright law. Many publications seem certain that they are not, particularly because Banksy doesn’t seek copyright protection for his works. But we aren’t so sure.
In order to receive copyright protection, an artistic expression must be a work of authorship that is original and fixed in any tangible medium of expression. The U.S. Copyright Act provides the creator of a work of art the exclusive right to “reproduce, distribute, perform, display, license, and to prepare derivative works based on the copyrighted work.” There’s no argument that Banksy’s works are original and that they are placed in a sufficiently permanent location. What’s more, many of them would meet the originality requirement (a pretty easy standard to meet) needed for copyright protection. So, if we have a protectable work, what about the fact that Banksy is not likely to have registered them? Well, a work doesn’t have to be registered to gain copyright protection. In fact, the moment is satisfies the aforementioned elements, it is copyrighted. When registration becomes crucial is if Banksy wanted to sue for infringement.
For the most part, Banksy’s month-long stint in NYC was viewed in the eyes of the law as vandalism (with the exception of the two large canvases he created on day 18, picture below). So, determining if his creations are copyrighted works depends on whether or not copyright law protects works of art that are created illegally. Even though it may seem intuitive that a work made in violation of the law should not be granted copyright protection, the Copyright Act does not specifically deny protection to works based on the legality of the work’s origin.
And in fact, copyright protection has been given to works that violate other laws. This point is illustrated in a Fifth Circuit case brought by the owner of a copyright over an adult film against a theater that showed the film without permission. The theater alleged that the film was not copyrightable because it was obscene and thus illegal. The court, however, rejected this argument and found that copyright protection existed in the film and that the Copyright Act was purposefully chosen to be content-neutral. In its decision, the court explained that “there is not even a hint in the language of [the copyright act] that the obscene nature of a work renders it any less a copyrightable ‘writing.’”
As to the specific issue of copyrightability with respect to graffiti, there has been one case on the subject that (almost) discusses whether illegality bars copyright protection. In Villa v. Pearson Education, Inc., Chicago graffiti artist, Hiram Villa, sued Brady Publishing for publishing his work in its strategy guide for one of the Tony Hawk videogames without the artist’s permission. After some procedural issues, the publishing company moved to dismiss the complaint, claiming that the work in question was not protected by copyright, “either because it is illegal graffiti or because it incorporates words or letters.” The court denied this motion, and found that the claim that the work was not copyrightable due to its illicit origin would require looking into the circumstances under which the work was created.
Unfortunately the parties settled before a substantive decision could be made. And while it’s true that the court made mention of a work’s origins, there’s no certainty that a finding of illegality would have meant copyright protection was precluded. We’re hopeful that a case will come along soon enough which will provide guidance on this issue once and for all.
Until then, we’re of the mindset that copyright law should extend to street art when it meets the minimal requirements for protection. We also think that copyright law should not be interpreted as anything but neutral about the means in which a work is created. What we aren’t saying is that we think a person should be able to break the law, protect his or her work via copyright, and walk away with no consequences. If Banksy wants to utilize his copyright protection, he should have that right. As far as consequences, other laws, like those on vandalism, are applicable and will dole out sufficient penalties and punishments.
Part of Banksy’s charm is the mystique that follows him. He chooses a locale for his work, somehow manages to evade prying eyes, and leaves us with beautiful works of art. What’s left behind is the only way we even know he was there. It would really be a shock if he came forward to exert his right against Walmart or any other retailer, for that matter. So, Walmart will likely walk away unscathed while we’re left guessing how the artist would react to this situation and where he’ll turn up next.
Jennifer Williams is a recent law student grad, who writes about fashion, the legal avenues available for protecting it, and the ways in which the laws are falling short. For more from Jennifer, visit her blog, StartFashionPause, or follow her on Twitter.